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Were you injured or did you suffer property damage in Oregon? Are you concerned that your claim is too small to involve an attorney? Does it feel like the insurance company you are dealing with is not treating you fairly?

Typically, in American litigation, each party pays its own attorney fees and costs. In certain situations, though, attorney-fee-and-cost-shifting statutes serve as an incredible motivator for the parties to resolve matters, which would otherwise be litigated, more quickly and cheaply.

Oregon Revised Statute 20.080 creates the potential for a person who has suffered personal injury or property damage to collect reasonable attorney fees where the statute's requirements are complied with. What's the catch? The total value of the claim being asserted must be capped at $10,000 in order to proceed under ORS 20.080. Obviously, this statute was an effort by Oregon legislators to motivate third party liability insurers to resolve “smaller” claims more quickly and fairly.

Prior to this statute, it would have been easier for a third party liability insurer to ignore smaller claims. This was true because some folks who suffered lesser amounts in damages could not afford an attorney, or the claim was “too small” to justify costly litigation (from the attorney's perspective). Now, where a third party liability insurer faces the possibility of having to pay the claimant's attorney fee bill at the end of litigating a smaller claim—the insurer could be paying more money out in attorney fees than the amount they will have to pay in damages for the harm that their insured caused. Admittedly, attorney fees are not cheap. For this reason, ORS 20.080 is a great tool to help motivate third party liability insurers to treat claimants more fairly than they otherwise would.

The dictates of the ORS 20.080 statute require a pre-litigation demand of $10,000 or less on the tortfeasor (the person who caused the damages) and his or her insurer not less than 30 days before the filing of the complaint (the lawsuit). It is good practice to add an extra three days in order to account for mail transit time. The demand should include all documents, i.e. medical records, medical bills and prescription receipts, any auto body shop estimates or invoices, work time loss logs, etc., in the claimant's possession that would apprise the tortfeasor and the third party liability insurer of the extent of the damages the claimant suffered.

In the 33-day timeframe discussed above, the third party liability insurance adjuster will be tasked with valuing the claim and potentially making an offer. If the adjuster makes no offer or makes a low offer, the insurer is exposed to potentially paying the claimant's reasonable attorney fees and litigation costs. The claimant, after 33 days, initiates the process by filing and serving a lawsuit. The filing of the lawsuit (and serving, when accomplished within 60 days of filing) “sets the bar” that the claimant must beat in litigation.

For example, if the adjuster makes no offer pre-litigation and then a lawsuit is filed and served, if the claimant recovers $1, the claimant is entitled to collect all of his or her reasonable attorney fees. Attorney fees incurred in a time-consuming endeavor like litigation could be as much as tens of thousands of dollars. Considering this reality under ORS 20.080, adjusters are typically instructed to calendar the 33-day period and make their best offer to the claimant before it expires (to set the bar higher). Obviously, the higher the offer the adjuster makes within the 33-day period, the less certain the claimant and the claimant's attorney will be that they can beat the insurer's pre-litigation offer in subsequent litigation.

Again, ORS 20.080 was enacted to pressure insurers to promptly and fairly evaluate and settle small claims. From our perspective, we see ORS 20.080 as a tool that makes a tangible difference consistently for our clients when dealing with smaller injury and property damage claims in Oregon.

If you want to know more about this statute, how it works, and how it could potentially help you—feel free to contact us.

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About the Author

Brad Thayer is a partner at the Schauermann Thayer firm. Brad is licensed in both Oregon and Washington. He has been practicing law since 2015. He was presented the 2018 Rising Star Award by the Clark County Bar Association. Brad's practice focuses on automobile collision, motorcycle, bicycle, pedestrian injury, dog bite, and myriad other types of injury and insurance cases. During his free time, Brad enjoys following the Portland Trail Blazers, playing basketball, going to concerts, and playing the drums. He especially enjoys hiking in the Columbia River Gorge and exploring other Northwest wonders.

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